Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 1 of 30

1 THOMAS P. O’BRIEN
United States Attorney
2 CHRISTINE C. EWELL
Assistant United States Attorney
3 Chief, Criminal Division
STEVEN R. WELK
4 California Bar No. 149883
Assistant United States Attorney
5 Chief, Asset Forfeiture Section
FRANK D. KORTUM
6 California Bar No. 110984
Assistant United States Attorney
7 Asset Forfeiture Section th
Federal Courthouse, 14 Floor
8 312 North Spring Street
Los Angeles, California 90012
9 Telephone: (213) 894-6166/5710
Facsimile: (213) 894-7177
10 E-mail: Steven.Welk@usdoj.gov
Frank.Kortum@usdoj.gov
11
Attorneys for Defendants
12

13

14 UNITED STATES DISTRICT COURT

15 FOR THE CENTRAL DISTRICT OF CALIFORNIA
16 WESTERN DIVISION
17 RAMON RIVERA, ) NO. CV 09-2435 FMC (VBKx)
)
18 Plaintiff, )
) GOVERNMENT’S
19 v. ) SUPPLEMENTAL BRIEF IN
) OPPOSITION TO PLAINTIFF’S
20 RONNIE A. CARTER, ETC., ) MOTION FOR PRELIMINARY
ET AL. ) INJUNCTION
21 )
Defendants. ) [DECLARATIONS OF STEVEN
22 ) R. WELK, DARRIN
) KOZLOWSKI AND CHIEF OF
23 ) POLICE DANIEL A. WEAST
) FILED CONCURRENTLY
24 ) HEREWITH]
)
25
[No hearing]
26

27
28
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1 TABLE OF CONTENTS
Page
2
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
3
I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4
II. MATERIAL FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5
III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6
A. The Restraint of the Trademarks Is Authorized By § 1963(d).. . . . . . 6
7
B. § 1963(d) Permits the Restraint of Whatever Rights and Interests the
8 Owner of the Restrained Property Enjoys. . . . . . . . . . . . . . . . . . . . . . 9
9 1. The rights of the holder of the Mongols Registered Marks are
within the scope of § 1963(d)’s authority. . . . . . . . . . . . . . . . . 9
10
2. The Registered Marks are, and have always been treated as,
11 collective membership marks, not service marks. . . . . . . . . . 11
12 C. Plaintiff Has No Enforceable Individual Rights with Respect to the
Registered Marks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13
1. Plaintiff has no Constitutional right to possess property
14 subject to a revoked limited license. . . . . . . . . . . . . . . . . . . . . 21
15 2. The Amended Order is narrowly tailored to avoid First
Amendment concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16
D. Plaintiff’s Lack of a Justiciable Claim Triggers the Statutory Bar on
17 Intervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18

19

20

21

22

23

24

25

26

27
28 i
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1 TABLE OF AUTHORITIES
2 FEDERAL CASES PAGE
3 Alexander v. United States,
509 U.S. 544 (1993).......................................................................................... 7
4
Aloe Creme Laboratories, Inc. v. American Society for Aesthetic Plastic Surgery,
5 Inc.,
192 U.S.P.Q. 170 (TTAB 1976). .................................................................... 12
6
American Speech-Language-Hearing Association v. National Hearing Aid Society,
7 224 U.S.P.Q. 798 (TTAB 1984). .................................................................... 13
8 Bally Total Fitness Holding Corp. v. Faber,
29 F. Supp. 2d 1161 (C.D. Cal. 1998). ........................................................... 13
9
Best Western International v. Patel,
10 523 F. Supp. 2d 979 (D. Ar. 2007). ................................................................ 20
11 Bosley Medical Institute, Inc. V. Kremer,
403 F.3d 672 (9th Cir. 2005). ......................................................................... 13
12
Brittingham v. Jenkins,
13 914 F.2d 447 (4th Cir. 1990). ........................................................................... 9
14 Cold Stone Creamery, Inc. v. Scoops Galore, LLC,
2006 WL 494808 (E.D. Pa., Feb. 28, 2006). .................................................. 20
15
Eberhart v. Massell,
16 311 F. Supp. 654 (D. Ga. 1970)...................................................................... 24
17 Healy v. James,
408 U.S. 169 (1972)........................................................................................ 22
18
L.L. Bean, Inc. v. Drake Publishers, Inc.,
19 811 F.2d 26 (1st Cir. 1987). ............................................................................ 13
20 Mattel, Inc. v. MCA Records, Inc.,
296 F.3d 894 (9th Cir. 2002). ......................................................................... 13
21
Moseley v. V Secret Catalogue, Inc.,
22 537 U.S. 418 (2003)........................................................................................ 13
23 NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982)........................................................................................ 22
24
NEC Electric v. CAL Cir. Abco,
25 810 F.2d 1506 (9th Cir. 1987). ....................................................................... 13
26 PGA v. Bankers Life & Casualty Co.,
514 F.2d 665 (5th Cir. 1975). ......................................................................... 20
27
28 ii
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1 Russello v. United States,

464 U.S. 16 (1983)............................................................................................ 6
2
Sovereign Order of Saint John of Jerusalem, Inc. V. Grady,
3 119 F.3d 1236 (6th Cir. 1997). ....................................................................... 20
4 Ex parte Supreme Shrine of the Order of the White Shrine of Jerusalem,
109 U.S.P.Q. 248 (Comm'r Pats. 1956). ......................................................... 14
5
In re Triangle Club of Princeton University,
6 138 U.S.P.Q. 332 (TTAB 1963). .................................................................... 14
7 United States v. 3 Parcels in La Plata County, Colo.,
919 F. Supp. 1449 (D. Nv. 1995).................................................................... 10
8
United States v. Anderson,
9 782 F.2d 908 (11th Cir. 1986). ......................................................................... 7
10 United States v. Angiulo,
897 F.2d 1169 (1st Cir. 1990). .......................................................................... 7
11
United States v. Busher,
12 817 F.2d 1409 (9th Cir. 1987). ..................................................................... 6, 7
13 United States v. Cauble,
706 F.2d 1322 (5th Cir. 1983). ......................................................................... 7
14
United States v. Freights, etc. of S.S. Mount Shasta,
15 274 U.S. 466 (1927).......................................................................................... 9
16 United States v. Gelb,
826 F.2d 1175 (2d Cir. 1987). ........................................................................ 10
17
United States v. Hooper,
18 229 F.3d 818 (9th Cir. 2000). ......................................................................... 24
19 United States v. Nava,
404 F.3d 1119 (9th Cir. 2005). ......................................................................... 7
20
United States v. Pelullo,
21 178 F.3d 196 (3d Cir. 1999). ............................................................................ 8
22 United States. v. Porcelli,
865 F.2d 1352 (2d Cir. 1989). .......................................................................... 7
23
United States v. Pryba,
24 900 F.2d 748 (4th Cir. 1990). ................................................................... 23, 24
25 United States v. Regan,
858 F.2d 115 (2d Cir. 1988). ............................................................................ 6
26
27
28 iii
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 5 of 30

1 United States v. Robel,

389 U.S. 258 (1967)........................................................................................ 22
2
United States v. Spilotro,
3 680 F.2d 612 (9th Cir. 1982). ........................................................................... 8
4 United States v. Timley,
507 F.3D 125 (8th Cir. 2007). ........................................................................ 24
5
6 FEDERAL STATUTES AND REGULATIONS
7 15 U.S.C. § 1115(b). ................................................................................................. 9
8 15 U.S.C. § 1127..................................................................................................... 12
9 18 U.S.C. § 981......................................................................................................... 7
10 18 U.S.C. § 982......................................................................................................... 7
11 18 U.S.C. § 1962............................................................................................... 4, 8, 9
12 18 U.S.C. §1963........................................................................................ 6, 9, 10, 11
13 18 U.S.C. §1963(1)(6). ........................................................................................... 25
14 18 U.S.C. § 1963(a). ............................................................................................. 7, 8
15 18 U.S.C. § 1963(a)(1).............................................................................................. 4
16 18 U.S.C. § 1963(a)(2).......................................................................................... 4, 7
17 18 U.S.C. § 1963(a)(3).............................................................................................. 4
18 18 U.S.C. § 1963(b). ............................................................................................. 6, 9
19 18 U.S.C. § 1963(c). ................................................................................................. 8
20 18 U.S.C. § 1963(d). ........................................................................................ passim
21 18 U.S.C. § 1963(i). ......................................................................................... passim
22 21 U.S.C. § 853......................................................................................................... 7
23 21 U.S.C. § 881......................................................................................................... 7
24 37 C.F.R. § 2.44(a).................................................................................................. 14
25 37 C.F.R. § 2.44(b). ................................................................................................ 14
26 37 C.F.R. § 3.71. ..................................................................................................... 12
27
28 iv
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1 I.
2 INTRODUCTION
3 A few days before the June 22, 2009 hearing on plaintiff’s motion for a
4 preliminary injunction, additional material facts were made known to the
5 government as the result of a filing of a motion in the related criminal case (United
6 States v. Cavazos, CR 09-1201 FMC). At the hearing, the government offered
7 additional argument and authority (in response to those presented by plaintiff in
8 his Reply), particularly on the issues whether (1) the Amended Order was
9 authorized by 18 U.S.C. § 1963(d); and (2) the Amended Order implicated or
10 imposed upon plaintiff’s First Amendment rights.1
11 Plaintiff’s motion should be denied and this action dismissed. Plaintiff
12 mischaracterizes the nature of the rights and interests at issue, and seeks to apply
13 provisions of trademark law and principles of Constitutional law that simply do
14 not apply in the context of the Amended Order or to the government’s forfeiture
15 claims. The Registered Marks and the rights appurtenant to them are intangible
16 assets (evidenced and manifested by tangible objects bearing them) in which
17 plaintiff admits he has no ownership interest. The undisputed evidence, including
18 sworn statements of the former and current National Presidents of the Mongols
19 and a government agent who infiltrated the gang, demonstrate that plaintiff’s
20 interest in the marks is merely a revocable limited license.
21

22 1
This motion arises from the government’s efforts to criminally forfeit (in
23 Cavazos) two registered trademarks acquired and maintained by the Mongols
outlaw motorcycle gang. On October 22, 2008, the government sight and obtained
24 an Amended Order Restraining Trademark (the “Amended Orded”), which
25 restrained the registered trademark consisting of the word “Mongols” (the “Verbal
Mark” or “restrained mark”). The government also seeks forfeiture of a symbolic
26 mark consisting of a drawing of a figure riding a motorcycle (the “Symbolic
27 Mark”). The marks are referred to collectively herein as the “Registered Marks.”
28 1
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1 The holder of the mark (the Mongols) has been shown to be a criminal
2 RICO enterprise (through guilty pleas entered by numerous defendants in
3 Cavazos). Admissions have been made that establish the marks were acquired and
4 maintained during the course and in furtherance of the criminal RICO enterprise,
5 and that the marks afforded a source of influence over the enterprise. These pleas
6 not only establish probable cause to believe that the marks are subject to restraint,
7 but that they are subject to forfeiture to the United States.2
8 Principles of trademark law are relevant to the determination of this motion
9 only to the extent that they define the rights and privileges appurtenant to the
10 Registered Marks. Both are collective membership marks, which allow the holder
11 to exercise an extraordinary degree of control over their possession, use and
12 display. The Mongols have always treated the Registered Marks as collective
13 membership marks, allowing their use, display and possession only by gang
14 members and subject to a limited license which can be revoked at any time for any
15 reason. Plaintiff’s rights in the Registered Marks are defined entirely by the
16 license by which he obtained the marks in the first place, and the government, as
17 the current holder of the marks by virtue of the Amended Order, has the same
18 rights as the owner, meaning that the government has the right to revoke the
19 limited license and recover the marks in order to preserve them for forfeiture.
20 Neither the Amended Order nor the government purport to prevent plaintiff
21 from being a Mongol or telling people that he is a Mongol. The order is narrowly
22 drawn to include only the Registered Marks, and does not include numerous other
23 words and symbols which the Mongols purport to own but have not registered.
24

25
2
An unopposed application for entry of a preliminary order of forfeiture
with respect to the Registered Marks was filed by the government on June 29,
26 2009. Once that order is entered, the ancillary process (discussed below) will
27 commence immediately.
28 2
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1 However, 18 U.S.C. § 1963(d) and the Amended Order prohibit plaintiff from
2 advertising his membership in this notorious criminal organization through the
3 use, display and possession of property that (1) is subject to forfeiture to the
4 United States; (2) he admits he does not own; and (3) he no longer has a license to
5 possess.3 Finally, § 1963(i) bars plaintiff’s motion and action. A third party’s
6 (i.e., non-defendant’s) sole remedy with respect to the restraint and forfeiture of
7 property subject to criminal forfeiture is the ancillary process that follows the
8 entry of a forfeiture order. However, because he has no colorable legal claim to
9 the marks, plaintiff will be incapable of stating a claim in the ancillary process.
10 Cavazos is not a trademark case; it is a RICO prosecution in which the
11 government is seeking the forfeiture of intangible rights, interests and privileges
12 that are forfeitable because of their involvement in and use by a criminal RICO
13 enterprise. The government does not seek a trademark remedy, and there is no
14 need to graft such remedies onto the RICO criminal forfeiture scheme. The
15 Amended Order was properly entered and is appropriately narrow in scope. The
16 nature and use of the Mongols Registered Marks is such that individual members
17 of the Mongols gang have neither individual ownership rights nor a Constitutional
18 right to use, display or possess the marks. For all of these reasons, plaintiff’s
19 motion should be denied and his complaint dismissed.
20 II.
21 MATERIAL FACTS
22 The indictment in Cavazos was filed on October 9, 2008, charging
23 numerous members of the Mongols oulaw motorcycle gang with federal RICO and
24

25
3
Incidentally, any claim by plaintiff that the Amended Order is having a
chilling effect on his purported right to express himself is groundless. There is
26 compelling evidence that plaintiff is willfully disobeying the Amended Order by
27 publicly wearing the restrained mark. See Welk Decl., exhibit L.
28 3
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1 drug violations. See Cavazos Indictment. Between 2005 and October 2008,
2 several Special Agents of the Bureau of Alcohol, Tobacco, Firearms & Explosives
3 (“ATF”) infiltrated the gang, ultimately becoming full members. See Kozlowski
4 Decl. Count One of the Indictment charges violation of 18 U.S.C. § 1962 (RICO),
5 and describes the creation, operation and maintenance of the criminal enterprise
6 that included the Mongols motorcycle gang. Indictment at 1-79. In Count Eighty-
7 Five, the government expressed its intention to seek the criminal forfeiture of any
8 property or interest in property acquired and maintained in violation of 18 U.S.C.
9 § 1962, pursuant to 18 U.S.C. § 1963(a)(1); any interest in, security of, claims
10 against, and property and contractual rights that afford a source of influence over
11 the Mongols criminal enterprise in violation of 18 U.S.C. § 1962, pursuant to 18
12 U.S.C. § 1963 (a)(2); and any property constituting or derived from proceeds
13 obtained, directly and indirectly, from racketeering activity in violation of 18
14 U.S.C. § 1962, pursuant to 18 U.S.C. § 1963 (a)(3). See Indictment at 172.
15 Among the specific property named in the forfeiture count was the
16 registered trademark of the word “Mongols,” identified by Registration No.
17 2916965 by the United States Patent and Trademark Office (“USPTO”) (the
18 “Verbal Mark”). Id. at 173. On November 5, 2008, the government filed a Bill of
19 Particulars in which it provided notice to the defendants that it also would seek the
20 forfeiture of the registered mark consisting of the symbol or drawing identified by
21 Registration No. 3076731 by the USPTO (the “Symbolic Mark”). See Welk Decl.,
22 exhibit I.
23 Registration of the Registered Marks was accomplished by Ruben Cavazos,
24 the lead defendant in Cavazos, who has since pled guilty to Count One of the
25 Indictment. Cavazos registered the marks as the National President of Mongol
26 Nation, an unincorporated association, in 2003 (Verbal Mark) and 2005 (Symbolic
27
28 4
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1 Mark). See Welk Decl., exhibits A, B, D and F. The Registered Marks remained
2 the property of Mongol Nation, and under the control of its National President
3 (Cavazos), until April 3, 2008, when they were assigned by Cavazos (acting on
4 behalf of Mongol Nation) to Shotgun Productions, LLC, a California limited
5 liability corporation, which was also controlled by Cavazos. See Welk Decl.,
6 exhibit C. On October 14, 2008, Shotgun Productions assigned its entire interest
7 in both marks back to Mongol Nation. Welk Decl., exhibits B and F. At that time,
8 Mongol Nation was again acting through its National President, who was then
9 Hector Gonzalez, another defendant in Cavazos. Welk Decl., exhibit D.
10 On October 22, 2008, this Court entered the Amended Order pursuant to 18
11 U.S.C. § 1963(d), which requires “the defendants . . . and any of their agents,
12 servants, employees, family members, and those persons in active concert or
13 participation with them” to “surrender for seizure all products, clothing, vehicles,
14 motorcycles, books, posters, merchandise, stationery, or other materials bearing
15 the Mongols trademark, upon presentation of [the Amended] Order.” Welk Decl.,
16 exhibit H. The Amended Order also prohibits the transfer or assignment of the
17 restrained mark by any of the above-listed persons.
18 On or about December 17, 2008, Mongols Nation Motorcycle Club, Inc.
19 (“Mongols, Inc.”) was formed. See Welk Decl., exhibit G. According to the
20 Statement of Information filed with the California Secretary of State on March 5,
21 2009, the Chief Executive Officer of Mongols, Inc. is Martin Guevara. Id.
22 According to a declaration of Guevara filed in Cavazos (Welk Decl., exhibit K),
23 Guevara is the National President of Mongols, Inc. and the Mongols, and has been
24 “since 2009.” Id. at ¶1. On January 22, 2009, (one month before plaintiff filed
25

26

27
28 5
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1 the instant action and motion), Mongol Nation assigned the Registered Marks to
2 Mongols, Inc.4
3 III.
4 ARGUMENT
5 A. The Restraint of the Trademarks Is Authorized By § 1963(d)
6 The forfeiture of the Registered Marks is sought pursuant to 18 U.S.C. §
7 1963, the criminal forfeiture component of the federal RICO statute. Just as the
8 substantive RICO law is expansive in its scope and effect, the RICO forfeiture
9 provisions are broader and reach further than virtually any other statutory
10 forfeiture scheme in the United States Code. The Ninth Circuit has said that the
11 forfeiture provision of § 1963 are “purposely broad . . .[,] designed to totally
12 separate a racketeer from the enterprise he operates.” United States v. Busher, 817
13 F.2d 1409, 1413 (9th Cir. 1987). The Supreme Court has said that the purpose of
14 RICO was “to provide new weapons of unprecedented scope for an assault upon
15 organized crime and its economic roots.” Russello v. United States, 464 U.S. 16,
16 26 (1983) (emphasis added).
17 That unprecedented scope is evident in the terms of the statute and the
18 property interests it reaches, which includes “tangible and intangible personal
19 property, including rights, privileges, interests, claims, and securities.” 18 U.S.C.
20 § 1963(b). It provides for the restraint and forfeiture of property rights of third
21 parties5; restraint not only of proceeds of the RICO offense, but of property which
22

23
4
See Welk Decl., exhibits B, D and J. The assignment was a knowing
violation of the Amended Order. See Mongol, Inc. Motion of June 16, 2009 (filed
24
in Cavazos) at 14, n.8 (“such assignment is . . . a violation of the Court’s Order.”).
25
5
See United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988)(order
26 restraining an unindicted third party is proper if necessary to preserve potentially
27 forfeitable property).
28 6
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1 affords a source of influence over the RICO enterprise (18 U.S.C. § 1963(a)(2))
2 and property outside the enterpise6; and restraint and forfeiture of property that is
3 not directly tainted by the underlying predicate acts.7 These categories of
4 forfeitable property go well beyond the types of interests subject to forfeiture
5 under the more commonly-used forfeiture statutes (e.g., 18 U.S.C. §§ 981 and 982;
6 21 U.S.C. §§ 853 and 881), such as property representing proceeds of the
7 underlying illegal activity, property used to facilitate the underlying activity, and
8 property involved in money laundering.
9 Where property is determined to be within the scope of § 1963(a), forfeiture
10 is mandatory. Alexander v. United States, 509 U.S. 544, 562 (1993) (“a RICO
11 conviction subjects the violator [to] . . . mandatory forfeiture under § 1963");
12 United States v. Nava, 404 F.3d 1119, 1124 (9th Cir. 2005); United States v.
13 Angiulo, 897 F.2d 1169, 1211 (1st Cir. 1990) (“any interests in an enterprise,
14 including the enterprise itself, are subject to forfeiture in their entirety”). It
15 includes forfeiture of property that has been transferred to third parties after the
16 commission of the acts giving rise to the forfeiture under the “relation back”
17 doctrine:
18 All right, title, and interest in [forfeitable property] vests in the United
States upon the commission of the act giving rise to forfeiture . . . . Any
19 such property that is subsequently transferred to a third person other than
the defendant may be the subject of a special verdict of forfeiture and
20 thereafter shall be ordered forfeited to the United States . . . .
21

22 6
United States. v. Porcelli, 865 F.2d 1352, 1364-65 (2d Cir. 1989) (“In
23 addition to forfeiting the RICO enterprise, the convicted racketeer must forfeit
certain property interests outside the RICO enterprise[, including] an ‘interest’
24
acquired or maintained through a pattern of racketeering activity.”
25
7
See, e.g., Busher, 817 F.2d 1409 (9th Cir. 1987); United States v.
26 Anderson, 782 F.2d 908 (11th Cir. 1986); United States v. Cauble, 706 F.2d 1322,
27 1349 (5th Cir. 1983).
28 7
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1 18 U.S.C. § 1963(c); United States v. Pelullo, 178 F.3d 196, 201 (3d Cir. 1999)
2 (“the defendant's interest in property forfeited under § 1963(a) is divested at the
3 time the racketeering activity upon which the conviction is predicated occurs. [It]
4 is vested in the government nunc pro tunc at the time at which the criminal activity
5 occurred.”).
6 To obtain a post-indictment restraining order under §1963(d) (such as the
7 Amended Order), the government need only demonstrate probable cause to believe
8 that: (1) it is likely to obtain a conviction against one or more defendants charged
9 with a violation of § 1962; and (2) the property to be restrained is subject to
10 forfeiture if the defendants are convicted. United States v. Spilotro, 680 F.2d 612,
11 618 (9th Cir. 1982). It is difficult to conceive how one could conclude that this
12 standard has not been satisfied here. The Court has accepted numerous guilty
13 pleas to Count One of the Indictment (thereby establishing the existence of the
14 RICO enterprise), and Ruben Cavazos, the long-time National President of the
15 Mongols, admitted as part of his plea that he acquired the Registered Marks as part
16 of and for the purpose of promoting the RICO enterprise (establishing the
17 forfeitability of the marks). The government argued in October 2008 that the
18 allegations of the Indictment and the sworn declaration of the lead case agent filed
19 in support of the original application for restraint established both of the required
20 elements, and the Court obviously (and properly) agreed, since it issued the
21 Amended Order.
22 Applying the same standard now, in light of the numerous guilty pleas and
23 admissions made by the defendants who have pled, the court has far more
24 evidence to consider.8 RICO was enacted to empower the government to reach
25

26 8
For example, in the redacted plea agreement attached to the Supplemental
27 Welk Decl. in Support of Government’s Opposition to Motion for Preliminary
28 8
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1 criminal organizations (and their assets) that could not be reached through then-
2 existing laws. The extraordinary remedies provided in § 1963 are intended to
3 dismantle criminal enterprises and prevent them from continuing to operate. The
4 Amended Order properly restrains a valuable asset that the Mongols enterprise
5 used to further its own criminal goals.
6 B. § 1963(d) Permits the Restraint of Whatever Rights and Interests
the Owner of the Restrained Property Enjoys
7
1. The rights of the holder of the Mongols Registered Marks are
8 within the scope of § 1963(d)’s authority
9 It cannot reasonably be disputed that trademark rights are within the scope
10 of the rights, privileges and interests subject to seizure and forfeiture under
11 § 1963(b). The purpose of a registered trademark is to provide a vehicle by which
12 the holder of the mark may enforce its legal rights, including the right to restrict
13 certain uses of the mark by others. 15 U.S.C. § 1115(b); Brittingham v. Jenkins,
14 914 F.2d 447, 453 (4th Cir. 1990). The degree of control the holder may exercise
15 over the mark is determined mostly by the nature of the mark and the manner in
16 which it is used by the holder, as discussed in some detail below, and whatever
17 rights, privileges and interests the holder has in a registered mark are subject to
18 restraint and seizure. 18 U.S.C. § 1963(b) and (d); United States v. Freights, etc.
19 of S.S. Mount Shasta, 274 U.S. 466, 470 (1927) (“By the general logic of the law a
20 debt may be treated as a res as easily as a ship. It is true that it is not tangible, but
21

22 Injunction (filed June 16, 2009), a leader of the Mongols pled guilty to Count One
23 and specifically admitted that the Registered Marks were used to “identify
members and intimidate rivals, as well as law enforcement and the public.” He
24 further admitted that they “were used by members of the organization during and
25 in furtherance of the offenses of the organization.” These admissions alone are
more than sufficient to establish forfeitability, much less probable cause to believe
26 that the marks provided a source of influence over the organization, and/or were
27 acquired or maintained in violation of §1962.
28 9
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 15 of 30

1 it is a right of the creditor’s, capable of being attached and appropriated by the law
2 . . . .”); United States v. 3 Parcels in La Plata County, Colo., 919 F. Supp. 1449,
3 1453 (D. Nv. 1995) (“Mere intangibility of an asset . . . does not preclude its
4 seizure”).
5 The restraint authority of § 1963(d), like the forfeiture authority of § 1963
6 generally, is extremely broad, in keeping with the goal of the RICO law. See
7 United States v. Gelb, 826 F.2d 1175, 1176 (2d Cir. 1987) (“The initial ex parte
8 order will ordinarily be very broad and subsequent fine-tuning may be necessary . .
9 . upon a motion by the defendants”) (emphasis added). The right to challenge the
10 restraint is limited, both in terms of scope and timing and, as indicated by the
11 emphasized language in the excerpt above, in terms of who is entitled to present a
12 challenge. Id. (“A post-indictment restraining order based on RICO's forfeiture
13 provisions may issue with a minimum of process [and] Congress appears to have
14 provided no durational limitation to its reach short of the termination of the related
15 criminal prosecution”).9
16 Finally, the ownership of the Registered Marks is not in dispute, at least as
17 between the parties here.10 The marks are currently the property of Mongols, Inc.11
18

19
9
The statutory ban on intervention, found at § 1963(i), and its application
to plaintiff’s action and motion, is discussed below.
20

21
10
Plaintiff claims no ownership interest in the Registered Marks, a point
conceded in his complaint (at ¶18), in his moving papers (Rivera Declaration in
22
Support of Motion at ¶ 3), and by his attorney at the June 22, 2009 hearing.
23
11
While Mongols, Inc. has admitted in a filing in Cavazos that the
24 assignment of the Verbal Mark was a violation of the Amended Order, the
25 government contends that the assignment, while voidable, is not necessarily void.
For reasons not relevant to the determination of plaintiff’s motion here, the
26 government likely will not seek to undo the transfer of the marks to Mongols, Inc.,
27 despite the clear violation of the Amended Order.
28 10
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 16 of 30

1 2. The Registered Marks are, and have always been treated as,
collective membership marks, not service marks
2
The essence of seizure or restraint is that it gives the government possession
3
and control over the property seized or restrained. This is a simple matter when it
4
comes to tangible property, because the government actually takes possession of
5
the item, denying the owner access to the property. However, with intangible
6
property, such as a trademark or a debt, what the government gets is control of the
7
property. Thus, if the government seizes or restrains a securities account, the
8
owner of the account is barred from conducting trades; if the government seizes or
9
restrains a person’s rights under a promissory note, the government assumes the
10
owner’s right to collect payments due under the note. Mt. Shasta, supra.
11
Plaintiff has gone to great lengths in his briefing to try to turn this case into
12
a trademark case, but while trademark law is not entirely inapplicable to the
13
determination of plaintiff’s motion, its application is very limited. Section 1963
14
contains no reference to trademark law; the government is not required to allege or
15
prove a violation of trademark law in order to forfeit the Registered Marks; and
16
the remedies sought by the government (both in terms of the initial restraint and
17
the ultimate forfeiture) are not trademark remedies (either directly or by
18
incorporation). Principles of trademark law are relevant here only to the extent
19
that they define the rights, privileges and interests attached to the Registered
20
Marks, because that defines the scope of the government’s restraint and seizure
21
authority, and its ultimate forfeiture.
22
The entry of the Amended Order was the functional equivalent of an
23
assignment of the restrained mark to the government, granting it control over the
24
mark. It gave the government the right to prosecute the mark to the same extent as
25
the holder of the mark, and properly restrained the rights of the holder (whether
26

27
28 11
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 17 of 30

1 Mongol Nation or Mongols, Inc.), to the exclusion of the holder.12 Trademarks are
2 characterized by terms of art. A “service mark” is “any word, name, symbol, or
3 device, or any combination thereof– (1) used by a person, or (2) which a person
4 has a bona fide intention to use in commerce . . ., to identify and distinguish the
5 services of one person, including a unique service, from the services of others and
6 to indicate the source of the services, even if that source is unknown.” 15 U.S.C.
7 §1127 (emphasis added). The activities recited in the identification must
8 constitute “services” as contemplated by the Trademark Act.
9 A “collective mark” is “a trademark or service mark– (1) used by the
10 members of a cooperative, an association, or other collective group or
11 organization, or (2) which such cooperative, association, or other collective group
12 or organization has a bona fide intention to use in commerce . . ., and includes
13 marks indicating membership in a union, an association or other organization.” 15
14 U.S.C. §1127. A “collective service mark” is “a mark adopted by a ‘collective’
15 (i.e., an association, union, cooperative, fraternal organization, or other organized
16 collective group) for use only by its members, who in turn use the mark to identify
17 their goods or services and distinguish them from those of nonmembers.” Aloe
18 Creme Laboratories, Inc. v. American Society for Aesthetic Plastic Surgery, Inc.,
19 192 USPQ 170, 173 (TTAB 1976) (emphasis added). A “ collective membership
20 mark” is
21 a mark adopted for the purpose of indicating membership in an
organized collective group, such as a union, an association, or other
22 organization. Neither the collective nor its members uses the
collective membership mark to identify and distinguish goods or
23 services; rather, the sole function of such a mark is to indicate that the
24

25
12
See 37 C.F.R. §3.71. “The assignee of a registered trademark . . . is
26 entitled to conduct the prosecution of the trademark . . . registration to the
27 exclusion of the original applicant or previous assignee.”
28 12
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 18 of 30

1 person displaying the mark is a member of the organized collective

group.”
2
Id. (emphasis added).13
3
Registration of any of these types of marks gives the holder the right to
4
control the use and display of the mark, in varying degrees. The cases relied upon
5
by the plaintiff, and by the court in its tentative decision, involve service marks or
6
collective service marks, meaning that the marks at issue were placed on items
7
which in turn were placed into the stream of public commerce or were used in
8
public commerce.14 As plaintiff himself admitted in his Reply, the Registered
9
Marks are neither service marks nor collective service marks, but collective
10
membership marks. See Plaintiff’s Reply Brief in Support of Motion for
11
Preliminary Injunction at 4 n.4.15 The nature of the marks (and their use) makes a
12

13 13
The final category is a “certification mark,” which certifies
14 characteristics or features of goods or services. See American Speech-Language-
15 Hearing Association v. National Hearing Aid Society, 224 USPQ 798, 806-808
(TTAB 1984).
16
14
See, e.g., Bosley Medical Institute, Inc. V. Kremer, 403 F.3d 672, 675
17 th
(9 Cir. 2005) (involving mark as to which plaintiff “has spent millions of dollars
18 on advertising and promotion throughout the United States and the rest of the
19 world”); Bally Total Fitness Holding Corp. v. Faber, 29 F.Supp.2d 1161 (C.D.
Cal. 1998) (service mark used on products distributed to public); L.L. Bean, Inc. v.
20 Drake Publishers, Inc., 811 F.2d 26 (1st Cir. 1987) (service mark used on goods);
21 Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (service mark); NEC
Elec. v. CAL Cir. Abco, 810 F.2d 1506 (9th Cir. 1987) (service mark on goods);
22 Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) (service mark on
23 goods).
24 15
As shown by exhibit A to the Welk Declaration, Ruben Cavazos’s
25 original application for the restrained mark was explicitly for a “collective
membership mark.” In fact, the application was originally rejected by the PTO
26 because it did not contain an identification of goods or services. The Mongols’
27 lawyer re-submitted the application, stating “of course there was no identification
28 13
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 19 of 30

1 substantive difference in defining (1) the rights of the holderand (2) whether,
2 when and by whom the Amended Order is subject to challenge.
3 Collective membership marks do not involve the production or distribution
4 of goods or the provision of services. They are not trademarks in the ordinary
5 sense; they are not used in business or trade, and they do not indicate commercial
6 origin of goods or services. Thus, the law relating to confusion of potential
7 customers, or confusion concerning the source of goods, does not apply.
8 Registration of collective membership marks fills the need of collective
9 organizations (such as outlaw motorcycle gangs) who do not wish to use the
10 symbols of their organizations on goods or services distributed to the public, but
11 do wish to protect their marks and prevent their use by others. See Ex parte
12 Supreme Shrine of the Order of the White Shrine of Jerusalem, 109 USPQ 248
13 (Comm’r Pats. 1956). That is what the Mongols obtained and that is precisely
14 what they sought to do. The holder of a collective membership mark exercises
15 total control over its use; and because the sole purpose of a membership mark is to
16 indicate membership, use of the mark is restricted to members of the collective.
17 See In re Triangle Club of Princeton University, 138 USPQ 332 (TTAB 1963).
18 An applicant for a collective membership mark must specify the class of
19 persons entitled to use the mark, indicating their relationship to the applicant and
20 the nature of the applicant’s control over the use of the mark. See 37 C.F.R.
21 §2.44(a) and (b). Cavazos did that here in the application for the Verbal Mark,
22 specifying that
23 the [Mongols gang] controls the use of the mark by members in the
following manner: an application for membership in the organization,
24 following completion of all requirements for initiation and
membership, receives the membership patch. In accordance with the
25

26 of goods and/or services because the application was to register a collective

27 membership mark.” Welk Decl., exhibit A.
28 14
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 20 of 30

1 bylaws of the association, th membership patch can only be worn by a

member and only if the member is in good standing. Any breach of
2 the rules of the association requires that the membership patch be
returned and membership in the association be cancelled.
3
Welk Decl., exhibit A (emphasis added). Guevara, the current National President
4
of Mongols, Inc. and the Mongols gang, confirms in his declaration that the
5
controls described by Cavazos remain in place today. Guevara states that “the
6
Club is the sole owner of the Marks” (Guevara Decl. at ¶6) and that:
7
The Club grants its members a limited license to use the Marks (and
8 similar variations of the Marks) by wearing them on clothing items
and displaying them on other items of personal property, including
9 vests and motorcycles . . . .
10 ***
11 Individual members of the Club do not own any rights in the Marks
(or the registration of the Marks) other than their limited license
12 rights.
13 ***
14 The limited license granted to the Club’s members prohibits wearing
or displaying personal items bearing any of the Club’s marks, and
15 requires return of any removable items bearing the Club’s marks
(patches, stickers, etc.) once any member is not in good standing
16 with the Club. . . . All Club members are required to agree to these
terms as part of their membership and limited license.
17
Guevara Declaration at ¶¶ 8, 9 and 10 (emphasis added).
18
In truth, however, the restrictions imposed by the Mongols on their marks
19
are even more extreme. SA Darrin Kozlowski was one of the ATF undercover
20
agents who infiltrated the Mongols, ultimately becoming a “full patched” member.
21
See Kozlowski Decl., ¶¶ 1-2. SA Kozwolski describes in his declaration the
22
process by which items bearing the Registered Marks are issued and, more
23
importantly, the circumstances under which they can be (and are) taken back.
24
The [three back patches, including the Verbal Mark (top rocker) and
25 Symbolic Mark (middle patch)] are provided to Mongols members by
the gang and generally sewn onto a member’s vest.
26

27
28 15
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 21 of 30

1 By accepting the Mongols patches, a member understands that he is

accepting the danger and risk associated with the wearing of those
2 patches on behalf of the Mongols. It is continually ingrained in every
member of the Mongols by the gang leadership that the patches are
3 only worn by members who earn them, and they, along with the
patches, will be respected by all at all times.
4
Since the formation of the Mongols in 1969 in Montebello, CA, the
5 Mongols patches have been regarded by the leaders and members of
the gang16 as property belonging to the gang, not the individuals who
6 bear it.
7 ***
8 There are four basic degrees of Mongols membership status: “hang
around”; “prospect”; “probationary”; and “full patch.” Each degree
9 of status entitles the member or prospective member to certain
privileges, and the patches play an important role in each step.
10
A “hang around” is a male . . . who shows interest in being around
11 members of the Mongols. . . . Hang arounds do not receive any gang
patches.
12
When an individual first becomes a prospect, he is given the bottom
13 rocker patch, a small rectangular front patch of the word
“PROSPECT,” and a small rectangular “Chapter” tab patch indicating
14 the chapter which the prospective member seeks to join (e.g., Los
Angeles, Hollywood, etc.). None of these patches contain registered
15 marks . . . .
16 An individual who becomes a prospect has as his ultimate goal
becoming a full patched member of the Mongols. The prospect will
17 do whatever it takes, including a wide variety of illegal activities, to
reach that goal.17
18
***
19
After a period of time in the prospect phase [which varies], the
20 prospect member will receive his center patch (bearing the symbolic
mark).18
21
***
22

23

24
16
Id. at ¶¶ 4-7.
25
17
Id. at ¶¶ 13-15, 17.
26

27
18
Id. at ¶ 18.
28 16
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 22 of 30

1 If at any time a prospect member is not measuring up to the standards

of the Mongols, he can be removed and his patch revoked by the
2 Mongols.19
3 ***
4 A “probationary” member receives all three back patches (bottom
rocker, center patch [symbolic mark], and top rocker [verbal mark])
5 from the outset. However, he must also wear a “probationary patch”
(a small, diamond-shaped patch with a black “P” against a white 20
6 background)[,] . . . which sets him apart from a full patch member.
7 ***
8 Once a prospect member completes the prospect phase, he will be
given his top rocker patch depicting the verbal mark “Mongols,”
9 making him a “full patched” member of the Mongols. As a full
patched member, the individual has knowingly agreed to defend the
10 Mongols and his patches, to the death if necessary.21
11 ***
12 A full patched member of the Mongols expects, commands, and
demands respect from members of the public and rival gang members.
13 Anyone who is not a patched member of the Mongols who shows,
verbalizes or displays any sign of disrespect towards a Mongol will
14 most likely suffer physical harm, up to and including being killed. . .
. . To members of the Mongols, a Mongols member is NEVER wrong.
15 Failure to defend and support an offended member can result in the
non-supportive Mongol being demoted to a prospect (which includes
16 revocation of the top rocker patch), being removed from the gang
(which includes revocation of all patches), and being subjected to
17 physical assaults administered by other Mongols.22
18 ***
19 If, at any point after becoming a full patched member of the Mongols,
a member fails to perform to the standards of the gang, his chapter or
20 the Mother Chapter, he will be declared a “disciplinary prospect.”
This involves revocation of either the top rocker (verbal mark) or
21 both top rocker and center patch (symbolic mark), demoting the
22

23 19
Id. at ¶ 20.
24 20
Id. at ¶ 22.
25
21
Id. at ¶ 25.
26

27
22
Id. at ¶¶ 30.

28 17
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 23 of 30

1 Mongol member back to prospect status. Once a member is demoted

to prospect status, he is once again required to perform as a prospect
2 until the member’s chapter and Mother Chapter agree he is deserving
of having his patch(es) returned to him. All patches revoked from 23a
3 Mongols member are maintained by the Mongols Mother Chapter.
4 ***
5 The Mongols retain control and ownership of all patches issued to its
members. The patches are ordered through the Mother Chapter and
6 distributed to individual chapters.
7 No member has control or ownership of a Mongols patch (specifically
including any patch bearing a Mongols registered mark). Nor is any
8 member allowed to replicate or manufacture a Mongols patch on their
own accord.
9
Once a member is no longer a member of the Mongols, and has either
10 resigned or been kicked out in bad standing, his patches and other
items depicting the verbal mark “Mongols” or the Mongols symbolic
11 mark must be turned in immediately. Failure to do so will result in
members of the Mongols forcibly collecting said items. In some
12 instances, removed members with Mongol tattoos have been required
to cover the tattoos or have them forcibly removed.24
13
The Kozlowski Declaration, the original Cavazos declaration in support of
14
the registration application for the Verbal Mark (Welk Decl., ex. A), the Guevara
15
declaration, and plaintiff’s own admissions concerning his lack of any ownership
16
interest in the marks, conclusively establishes that the Mongols treated the
17
Registered Marks only as collective membership marks.25 The gang, as the holder
18
of the marks and grantor of a limited license to its members, controlled not only
19
the use and display of the marks by Mongols members, but the possession of the
20
marks by prospective, current and former members. Critically, the Mongols
21

22 23
Id. at ¶ 32.
23
24
Id. at ¶¶ 33-35.
24

25
25
Even if the Registered Marks were registered as service marks or
collective service marks, the overwhelming evidence shows that they were never
26 used as or considered to be anything other than collective membership marks by
27 the Mongols.
28 18
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 24 of 30

1 prevented non-members (i.e., unauthorized users) from even possessing the

2 marks.26
3 In fact, the Mongols treated their Registered Marks in the same manner that
4 police departments treat official badges carried by sworn peace officers. See
5 Weast Decl. Police departments issue badges to their officers to identify them as
6 officers. The officers are required to carry and/or display the badge while on duty
7 (and, in many cases, while off-duty). However, the officers don’t own the badges
8 - they are permitted to carry and wear them because the issuing department has
9 given them a limited license to do so. Id. There are certain actions that the
10 officers are required to do and refrain from doing in order to retain their license to
11 carry the badge, and if they separate from the issuing department, for whatever
12 reason, or are disciplined, they are required to relinquish possession of the badge
13 to the issuing department. Id. Registration of a collective membership mark gives
14 the holder of the mark similar rights when treated and used as the Mongols have
15 treated their marks. The Mongols wil not tolerate unauthorized use or display of
16 their marks.27
17

18 26
Plaintiff may argue that the government is overstating the authority of the
19 gang to revoke the limited license granted to Mongols members, but allowing the
government to seize items bearing the marks clearly preserves forfeitable property
20 - that is, the Registered Marks - by it preserving the property for forfeiture and
21 preventing the licensees from improperly disposing or concealing that property.

22 27
See Kozlowski Decl., ¶ 37:
23 The Mongols will not allow members of any other group to call
themselves Mongols or bear a logo or mark similar to theirs without
24 action being taken. In other words, if a motorcycle group decided to
25 call itself “Mongols,” and wear a completely different logo in a
completely different territory, the actual Mongols would seek to shut
26 down that group, forcibly remove their patches, and prevent them
27 from identifying themselves as “Mongols.”
28 19
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 25 of 30

1 The right to enjoin the unauthorized use of collective marks, including

2 collective service marks (which are entitled to less protection than collective
3 membership marks because they are actively used in public commerce), is well-
4 established. See, e.g., Best Western Int’l v. Patel, 523 F.Supp.2d 979 (D. Ar.
5 2007) (revocation of license to use collective membership marks justifies
6 injunction against use and display of marks because continued use and display
7 misrepresents authorized affiliation); Sovereign Order of Saint John of Jerusalem,
8 Inc. V. Grady, 119 F.3d 1236 (6th Cir. 1997) (affirming portion of an injunction
9 barring use and display of a registered collective membership mark by a member
10 of the organization whose license to use and display the mark had been rescinded);
11 PGA v. Bankers Life & Casualty Co., 514 F.2d 665 (5th Cir. 1975) (revocation of a
12 license to use a collective service mark justified an injunction against the former
13 licensee in connection with further use and display which implied affiliation;
14 licensee’s right to the mark ends upon termination of the licensing agreement); and
15 Cold Stone Creamery, Inc. v. Scoops Galore, LLC, 2006 WL 494808 at *2 (E.D.
16 Pa., Feb. 28, 2006) (revocation of license to use collective service mark justifies
17 injunction barring use and display and requiring return of materials provided
18 pursuant to license).
19 Since collective membership marks, by their very nature, do not involve
20 goods or services, the cases discussing commercial infringement and confusingly
21 similar marks do not apply. If the government cannot restrain the possession of
22 the Registered Marks by Mongols members and associates through court-ordered
23 seizure, when the holder of the marks has the unfettered right to demand the return
24 of those very items, the restraint authority of § 1963(d) is rendered illusory.
25

26

27
28 20
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 26 of 30

1 C. Plaintiff Has No Enforceable Individual Rights with Respect to

the Registered Marks
2
Turning to plaintiff’s claim, the real question before the Court is what legal
3
right(s) he has with respect to the Registered Marks or, more particularly, what
4
right(s) does he have that are affected by the narrowly-drawn Amended Owner?
5
He claims no ownership interest, and any claim of an individualized possessory
6
interest is defeated by the overwhelming evidence that his possession of the marks
7
is subject to a revocable limited license. He is left with the argument that the
8
Amended Order imposes an improper restraint on a Constitutionally-protected
9
right.
10
1. Plaintiff has no Constitutional right to possess property subject
11 to a revoked limited license
12 Plaintiff’s claim boils down to an argument that he has a First Amendment
13 right to use the property of another to trumpet to the world his membership in a
14 notorious criminal RICO enterprise. There is no such right. For the same reason
15 that a police officer who no longer has a license to carry a badge is barred from
16 carrying it (and must return it), plaintiff is barred by the Amended Order from
17 using, displaying or possessing items bearing the restrained mark. That does not
18 mean that he is restrained or prohibited from telling others that he is a member of
19 the Mongols - the Amended Oder does not purport to limit his right to do so - it
20 simply means that he does not have an individual right to use or possess the
21 property of the criminal enterprise.28
22

23 28
The Amended Order merely allows enforcement of the property rights
24 guaranteed by the registration of the marks; it does not affect any First
25 Amendment rights. A former police officer cannot continue to use and display an
official badge even if he strongly believes in law and order and is an enthusiastic
26 supporter of the issuing department. His right to possess and use that badge are
27 defined entirely by the licensor. Likewise, plaintiff’s purported deep feelings for
28 21
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 27 of 30

1 This is neither “innuendo” nor “guilt by association,” as plaintiff claims in

2 his Reply brief. Plaintiff’s Reply at 8. The government need neither allege nor
3 prove that plaintiff has committed any crime because the authority to restrain the
4 Registered Marks flows from the rights of the holder of the marks which issued
5 the revocable limited license. The fact that the Mongols is an organization built
6 on murder, drug trafficking and terrorizing the public is somewhat secondary here
7 - this is about forfeitable property, and plaintiff’s license to possess the Registered
8 Marks has been revoked. None of the cases relied upon by plaintiff in support of
9 his “guilt by association” claim involve property rights, much less restraint of
10 registered marks subject to a revocable limited license.29
11 Nor can plaintiff credibly claim that the Amended Order is having a chilling
12 effect on his ability to express himself. On June 18, 2009 (two days before the
13 hearing on plaintiff’s motion), plaintiff was photographed by a San Diego
14 Sheriff’s Department Deputy riding his motorcycle in San Diego County while
15 wearing a shirt bearing the restrained mark. See Welk Decl., exhibit L.30
16

17
the belief system of the Mongols (whatever that belief system may be) does not
18 cause a Constitutional right to arise in his favor with respect to the Registered
19 Mark, which he admits he does not own.
20 29
See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (injunction
21 of boycott and picketing); Healy v. James, 408 U.S. 169 (1972) (denial of
recognition as a campus organization by public college); United States v. Robel,
22 389 U.S. 258 (1967) (denial of employment based on membership in a Communist
23 organization).
24 30
Plaintiff’s Constitutional claims, like his trademark arguments, are a
25 feint, intended to pull attention away from the true nature of the Registered Marks
and his lack of any legally cognizable claim with respect to the marks. Plaintiff
26 “beckon[s] [the Court] into a thicket of constitutional claims, asserting prior
27 restraint [and] the chilling of free expression . . . . [W]e decline this invitation.
28 22
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 28 of 30

1 2. The Amended Order is narrowly tailored to avoid First

Amendment concerns
2
Also critical here is that both the forfeiture allegation in the Indictment and
3
the Amended Order are limited to the property rights and interests represented by
4
the Registered Marks. The government did not ask to prevent, and the Amended
5
Order does not restrain, Mongols members from displaying the numerous non-
6
trademarked words and images that they use to identify themselves as Mongols.
7
As explained in the Kozlowski Declaration, the Mongols issue their members a
8
wide array of patches and insignia that the members wear on their vests, most of
9
which are not registered marks and do not incorporate the Registered Marks. See
10
Kozlowski Decl. at ¶¶ 38-39. While the Mongols consider and treat those words
11
and symbols as their property as well, since they have not registered them as
12
trademarks, their legal ability to prevent others from using the marks is less certain
13
than with respect to the Registered Marks. Thus, the Amended Order is narrowly
14
tailored to apply only to those marks as to which the Mongols chose to seek
15
formal legal protection.
16
D. Plaintiff’s Lack of a Justiciable Claim Triggers the Statutory Bar
17 on Intervention
18 Section 1963(i) specifically bars the bringing of a motion or filing of a
19 separate action to challenge the seizure or restraint of property sought for
20 forfeiture during the pendency of the criminal action. The reasons for this
21 provision are amply demonstrated here. Because this is an on-going prosecution
22 in which many defendants have entered guilty pleas (to the RICO count in
23 particular), the government and the court are aware of extensive admissions by
24 charged defendants concerning the allegations of the Indictment and the forfeiture.
25

26 Such an exercise is not necessary to resolve this case.” United States v. Pryba,
27 900 F.2d 748, 756 (4th Cir. 1990). The same is true here.
28 23
 Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 29 of 30

1 However, because many of those plea agreements are under seal, the government’s
2 hands are tied when it comes to revealing the overwhelming evidence establishing
3 not only the existence and extent of the RICO enterprise, but the uncontested and
4 dispositive evidence demonstrating that the marks at issue here are subject to
5 forfeiture.
6 Section 1963(i) eliminates the tactical advantage that would otherwise be
7 enjoyed by unindicted co-conspirators and non-charged members of the RICO
8 enterprise by prohibiting them from intervening in the criminal case (as Mongols,
9 Inc. is attempting to do) or attacking restraining orders in a separate action, as
10 plaintiff seeks to do here. To this point, plaintiff has avoided the bar on
11 intervention by characterizing the Amended Order as a prior restraint on his
12 Constitutional right to free speech, and he has forced the government to address
13 the merits of his claim while it simultaneously prosecutes a complex criminal
14 RICO case - exactly the situation Congress sought to prevent in enacting
15 § 1963(i). The time has come to take a hard look at exactly what plaintiff’s claim
16 is. The First Amendment is not a shield to criminal prosecution (United States v.
17 Pryba, 900 F.3d 748, 755 (4th Cir. 1990)), and it cannot be used to an excuse for
18 criminal conduct. Eberhart v. Massell, 311 F.Supp. 654, 658 (D. Ga. 1970).
19 The government filed an unopposed application for a preliminary order of
20 forfeiture with respect to the Registered Marks on June 29, 2008. Once that order
21 is entered, the ancillary process will commence, and non-defendant third parties
22 will have an opportunity to contest the government’s right to forfeit the Registered
23 Marks. But plaintiff will be unable to participate in that process because he has no
24 colorable claim. The only grounds upon which a third party can prevail in an
25 ancillary proceeding are those set forth in the statute under which forfeiture is
26 sought. United States v. Hooper, 229 F.3d 818 (9th Cir. 2000); United States v.
27
28 24
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